[Deathpenalty] death penalty news----TEXAS, VA., N.C., ALA., TENN., ALA.

[Rick Halperin]

October 19



TEXAS:

Zavala-Garcia trial pushed back again to May 2019, more DNA testing 
requested----She testified it will take the trace experts at the DPS lab about 
30 days to get the items ready and transferred to the UNT lab and it will take 
the UNT lab about 6 months to test the items.



The state and defense have agreed that more DNA testing is needed before the 
capital murder case for the man accused of the 2016 killing of 10-year-old 
Kayla Gomez-Orozco can go to trial. This agreed order will push the trial date 
back another 2 months.

Gustavo Zavala-Garcia appeared in court Thursday for a pretrial hearing 
regarding DNA testing of trace evidence.

A forensic expert from the Texas Department of Public Safety lab in Garland 
testified the lab issued a report to the state on Oct. 10.

She said the lab tested 24 samples through nuclear DNA testing and she has been 
working with the defense expert to find the items that are best suited for 
mitochondrial testing, a testing method the DPS lab cannot perform.

The DPS lab agreed to send 10 items to the University of North Texas lab for 
mitochondrial DNA testing.

She testified it will take the trace experts at the DPS lab about 30 days to 
get the items ready and transferred to the UNT lab and it will take the UNT lab 
about 6 months to test the items.

Judge Jack Skeen with the 241st District Court said if the state and defense 
agree the mitochondrial testing is necessary, then the court will issue an 
issue an order to have the testing done and amend the scheduling order for the 
trial.

"The defense is requesting it and state is agreeing to it," Smith County 
Assistant District Attorney Jacob Putman said. "It's a death penalty case and 
we want to make sure it's right."

Skeen said the court will reschedule the trial to the end of May based on the 
testimony from the DPS forensic expert.

He said the new scheduling order would also set a date to bring in the jury 
panel because it normally takes about 4 weeks to select a jury for a death 
penalty case.

"A panel of about 300 people will be called and it will take about 4 weeks to 
pick the jury," Skeen said.

The state and defense agreed the trial should be pushed back until the end of 
May 2019.

Zavala-Garcia is accused of killing Kayla in November 2016. He was related to 
her by marriage and was among the last people to see her before she went 
missing Nov. 1, 2016, from the foyer of Bullard First Assembly on U.S. Highway 
69.

Her body was found 4 days later in a well on the property where Zavala-Garcia 
lived, in the 22100 block of Farm-to-Market Road 2493 (Old Jacksonville 
Highway) in Bullard.

It is unclear what exactly caused her death, and at the time the indictment was 
released, District Attorney Matt Bingham declined to comment, citing the 
restrictive and protective order in the case.

In the indictment, prosecutors contend Zavala-Garcia attacked Kayla and 
sexually assaulted or attempted to sexually assault her after her kidnapping.

Prosecutors also contend he struck Kayla with and against a blunt object, 
asphyxiated her and drowned her.

(source: KYTX news)








VIRGINIA:

Father of Convicted Murderer Pleads for Son to Be Forgiven



A retired police officer, appearing at the sentencing hearing of his son, who 
has been convicted of capital murder, pleaded for his son to be "forgiven" and 
sentenced to life in prison rather than his being put to death.

Ronald Williams Hamilton was convicted last month for the Feb. 27, 2016, 
killings of his wife, Crystal Hamilton, 29, and Prince William Police Officer 
Ashley Guindon, 28, a rookie on her 1st shift for the department.

Hamilton was also convicted of other charges, including attempted murder in the 
shootings of 2 other officers, David McKeown and Jesse Hempen. Prosecutors are 
seeking the death penalty.

Hamilton's father, also named Ronald, was the final witness called by defense 
attorneys who have been trying for 2 weeks to save the life of the convicted 
murderer in Prince William County Circuit Court.

"What my son did was wrong," said the elder Hamilton, a retired Charleston, 
South Carolina police officer. "Some time, we have to reach back and forgive."

During more than an hour on the witness stand, the 65-year-old Hamilton 
described his troubled relationship with his son.

At one point, the father said, he was profiled by the Post and Courier, a 
Charleston newspaper, but spoke only of his wife and daughter. But he never 
mentioned his only son, the child of a woman with whom he was having an affair.

After the article was published, the elder Hamilton saw his son, still a minor, 
less often. "I left my son behind," he admitted.

In a video shown to the jury from Thanksgiving 2013, the younger Hamilton 
praised his mother. "The woman raised me, not a man," he said. Then, he walked 
over to his wife, Crystal, dropped to one knee and gave her a ring. "If I had 
the opportunity," he said, "I would marry her 100 times over."

3 years later, he would murder her. Officers had answered the domestic violence 
call at Hamilton's residence in Woodbridge, Virginia, a suburb of the 
Washington D.C., area. Hamilton, who had already shot Crystal Hamilton in the 
head with a handgun, fired at the officers called to the scene with an AK-47.

More officers rushed to the residence, and the couple's son, Tyriq Hamilton, 
then 11, ran out of the house. In opening arguments, one of the prosecutors 
told the jury that the boy had been "left to his fate by his father."

But in testimony last week, Hamilton's sister, Cassandra Williams, also a 
police officer with the Summerville, S.C., Police Department, said that after 
her brother shot the police officers, he immediately called her. When Williams 
heard what had happened, she told her brother to "get him [Tyriq] out of the 
house right now."

She also testified that her brother wanted to kill himself, but she talked him 
into giving himself up.

Hamilton had been a sergeant in the Army, working at the Pentagon following a 
deployment to Iraq. Throughout the past 2 weeks, educators, mentors and fellow 
soldiers have taken the stand and described Hamilton's start as an at-risk 
youth and, early on, a soldier in need of discipline. But as time passed, they 
began to think of him as a brother and a good soldier who never forgot to say 
thank you.

But the stress that wartime deployments put on the military has also been a 
recurring theme. In court this morning, David Bendernagel, a mitigation 
specialist for the Capital Defender Office, testified that not long after the 
incident, he went to the shooting scene and found 2 bottles of prescription 
pills on the seat of Hamilton's vehicle. Both bottles contained antidepressants 
- Wellbutrin and Trazadone.

(source: Courthouse News)








NORTH CAROLINA:

12 years without an execution: State of the death penalty in NC



Following the shooting death of Trooper Kevin Conner, the district attorney in 
Columbus County is considering whether to pursue the death penalty against his 
accused killer, Raheem Davis.

North Carolina has not carried out any executions since 2006.

Davis faces a 1st-degree murder charge after investigators say he shot Conner 
during a traffic stop early Wednesday.

During a hearing Wednesday, District Attorney Jon David called the case 
"anything but ordinary" and said he would convene a panel of staff members 
within his office to determine if he'll seek the death penalty.

He said they would go "slowly and deliberately" in making that determination.

There are currently 141 people on death row in North Carolina, according to the 
Department of Public Safety.

State records show last year, 5 people on death row died of natural causes 
while they awaited execution.

Cassandra Stubbs, director of the ACLU's Capital Punishment Project, said the 
death penalty is "tied up in a series of legal challenges" that relate to 
issues such as lethal injection and racial bias.

"This is complex, difficult litigation. And, there's really no end in sight," 
she said.

State records show the convictions for some people on death row go back 
decades. In the oldest case, Wayne Laws was convicted of murder in Davidson 
County in 1985.

Stubbs has represented defendants on death row, including Bo Jones, who was 
exonerated in 2008.

"There have been 9 people in North Carolina sentenced to death who turned out 
to be innocent," Subbs said.

In recent years, the number of people sentenced to death in North Carolina has 
declined.

In 2012, 2015 and 2017 no one was sentenced to death. In 2013, 2014 and 2016 1 
person was sentenced to death in each of those years.

In Wake County, juries have declined to sentence defendants to death in the 
nine most recent capital cases that prosecutors have brought.

Following the most recent case earlier this year, Wake County District Attorney 
Lorrin Freeman said, "There are times when the facts of the case are so 
egregious, so terrible that we believe it’s appropriate for the community to 
make the decision in the case through the jury process."

After a deadly prison escape attempt at the Pasquotank Correctional Institute 
near Elizabeth City in 2017, District Attorney Andrew Womble decided to seek 
the death penalty against the 4 prisoners accused of murder in the case.

Republican legislative leaders Sen. Phil Berger and House Speaker Tim Moore at 
the time said the legal challenges to the death penalty have resulted in a "de 
facto moratorium."

They called on Democrats Gov. Roy Cooper and Attorney General Josh Stein to 
"restart" the death penalty, even though both Cooper and Stein have expressed 
their support of capital punishment in certain cases.

"It’s not a question of the will of one individual driving this. These are 
enormous problems that plague the death penalty in North Carolina," said 
Stubbs.

She said it's not clear when judges will rule on the various outstanding cases 
involving the death penalty.

(source: WNCN news)








ALABAMA:

Appeals court orders review of Jefferson County judge



A state appeals court has asked the Judicial Inquiry Commission to investigate 
a Jefferson County judge to determine if she violated ethical rules.

The Court of Criminal Appeals issued a ruling Friday that denied the state's 
motion to hold Jefferson County Circuit Judge Tracie Todd in contempt of court, 
but said the court is "troubled" by Todd's "repeated failure to abide by 
controlling law and her seemingly cavalier disregard for the orders of this 
Court and the Alabama Supreme Court."

Todd’s actions "present questions of grave concern," the appeals court states, 
and they sent the case to the JIC for the commission to determine if 
proceedings should be brought against Todd.

The JIC investigates ethics complaints, and if necessary files charges, against 
judges. Those charges are then heard by the Court of the Judiciary, which could 
discipline or remove a judge from the bench.

The issues between the state and Todd began in January when, according to the 
court's ruling, the Court of Criminal Appeals directed Todd to recuse herself 
from Terrell Corey McMullin's death-penalty case. The court ordered Todd recuse 
herself because she had issued prior rulings that directly conflicted with the 
Alabama Supreme Court's rulings on judicial override of the death penalty - 
when a judge can override a jury's recommendation and either sentence a 
defendant to death or order a sentence of life in prison. Alabama was one of 
the few states to still allow judicial override, but state law barred it in 
2017.

According to Friday's ruling, Todd applied the banning of judicial override 
retroactively - but, the Alabama Supreme Court specifically ordered that the 
ban did not apply retroactively.

The court also noted in the January order that Todd may have violated the 
Canons of Judicial Ethics when she gave a radio interview about several capital 
murder cases pending in her court.

Lawyers for McMullin asked the appeals court to reconsider its decision, but 
the court denied the motion. Todd and McMullin, both represented by attorneys 
from the Equal Justice Initiative, asked the Alabama Supreme Court to review 
the case, according to the ruling.

The state Supreme Court denied their motion.

In September, Todd set an October date for a conference in McMullin’s case. The 
state asked the appeals court to make Todd show why she shouldn't be held in 
contempt for still not recusing herself and that the matter be referred to the 
Judicial Inquiry Commission "for an investigation into Judge Todd's behavior," 
the motion states. Todd responded, saying she set the case for a conference by 
mistake and that she did enter an order recusing herself from McMullin's case.

According to the ruling, Todd said she never received a notice that the Alabama 
Supreme Court denied her and McMullin's petition for review. "Judge Todd states 
that she did not willfully disobey this Court’s mandate, and she asserts that 
the State's motion 'does not fully consider [her] good faith effort to 
adjudicate matters in a professional, ethical, and legally sound manner.' She 
further asserts that the State 'misinterpreted and mischaracterized' her 
actions and that this Court does not have the authority to refer the matter to 
the Judicial Inquiry Commission."

The appeals court said in its Friday ruling that although Todd claimed she 
never received notice from the state's highest court about their denial to 
review the case, "she has offered no explanation as to how that happened" and 
didn't deny that she did receive a copy of the order to recuse herself. "She 
also has not stated any reason why, since she knew this Court had ordered her 
to recuse months ago, she did not at least check the case file or the status of 
McMullin's petition with the Supreme Court before she entered an order setting 
the matter for a status conference," the ruling said.

Even though the appeals court denied to hold Todd in contempt, the court noted 
that the JIC "would be better directed" to determine if her actions violated 
the ethics canon, and ordered that a clerk deliver a copy of their ruling to 
the JIC. Should a member of the JIC think the case deserves a proceeding, he or 
she must file a complaint with the commission.

All 5 of the appeals judges concurred with the ruling, and Judge J. Michael 
Joiner judge wrote a special opinion to note that Todd "has been the subject of 
more than 20 petitions seeking extraordinary writs" over the past 2 years. Many 
of those petitions sought Todd's recusal, and several were denied "on purely 
procedural grounds."

(source: al.com)

****************************

In a Case that Rocked Alabama, a Man With Intellectual Disability Is Spared 
Death



This week, in one of the highest profile cases in Alabama history, longtime 
ACLU client Lam Luong was resentenced to life in imprisonment without parole, 
nine years after he was sentenced to death. Luong's life was spared because 
experts hired by both the state of Alabama and the defense agreed that he met 
the criteria for intellectual disability.

Luong, born during the Vietnam War to a Vietnamese woman and a Black American 
serviceman, was convicted and sentenced to death in the spring of 2009 for the 
murder of his four young children on the Dauphin Island Bridge in Alabama.

In 2002, the Supreme Court held in Atkins v. Virginia that the Eighth Amendment 
to the Constitution prohibits the execution of persons with intellectual 
disabilities. There was no question that Luong met the criteria. Almost a 
decade after his original conviction and death sentence, the state finally 
agreed that Luong could not be executed and joined the defense in asking to 
change his sentence.

After Luong received a life sentence this week, Mobile County District Attorney 
Ashley Rich complained that no one who encountered Mr. Luong in 2008 and 2009 
noticed any signs of intellectual disability, including the "very experienced 
members of the bar specializing in criminal law" who represented him at trial. 
Lawyers, of course, aren't mental health professionals by trade. And while it's 
true that Luong's trial lawyers did not hire a psychologist to investigate the 
question, Rich's complaint speaks volumes of the due process mistakes that 
plagued the case from the beginning and nearly cost Luong his life.

How did Luong get sentenced to death long after the Supreme Court ruled on the 
issue? Judge Charles Graddick - who during his 1978 campaign to become 
Alabama's attorney general committed to "fr[ying] [murderers] till their eyes 
pop out and smoke comes out of their ears" - presided over the 2009 trial. 
Responding to intense community pressure, Judge Graddick was determined to 
fast-track Luong's case, and he was convicted and sentenced to death in a 
record 14 months after the crime. Most Mobile County capital cases aren't even 
indicted in that period of time, let alone tried.

In the rush to try Mr. Luong, Judge Graddick took shortcuts and ignored Luong's 
constitutional rights, letting the passions of the community guide a complex 
death penalty case involving a multi-cultural defendant who spoke little 
English. As a result, Luong's lawyers and Judge Graddick alike missed the 
obvious signs of Luong's intellectual disability and severe mental illness.

Even the state's psychologist - the only psychologist hired by any party to 
evaluate Luong - conducted such a cursory evaluation that he did not bother to 
administer any intelligence tests to the defendant. Judge Graddick refused to 
give the trial lawyers any funds to investigate Luong's life history in 
Vietnam, where he spent his childhood, suggesting instead that they attempt to 
interview family members by video conference.

The ACLU first took Luong's case on appeal, challenging, among other things, 
some of Judge Graddick's shortcuts. In a remarkable decision given the politics 
of the case, the Alabama Court of Criminal Appeals in 2013 unanimously ordered 
a new trial. The court found Judge Graddick erred in refusing to change the 
venue of the trial to a location outside of Mobile, despite a flood a 
prejudicial, pretrial publicity. The decision also found the judge erred in 
refusing to allow Luong's lawyers to question potential jurors individually 
about their exposure to the publicity and in denying funds to conduct the 
Vietnam investigation.

At that point, the state of Alabama could have conceded error and allowed Luong 
a new trial to remedy these constitutional violations. Instead, the state, led 
by then-Attorney General Luther Strange and supported by Mobile District 
Attorney Ashley Rich, decided to appeal the court's decision to the Alabama 
Supreme Court. In 2014, a divided court, led by then-Chief Justice Roy Moore, 
reversed the lower court's decision on every claim.

In the next stage of his appeals, the ACLU conducted the life history 
investigation that Judge Graddick had denied Luong's trial lawyers. We 
uncovered extensive mitigating evidence that had never been found, including 
information making Luong’s intellectual disability plain.

To meet the criteria for intellectual disability and qualify for the exemption 
to the death penalty under state and federal law, a person must have 
significantly subaverage intellectual functioning, subaverage adaptive 
functioning, and onset of the disability in the developmental period. Experts 
hired by Luong and the state of Alabama in the post-conviction stage agreed 
that Luong met the criteria and was therefore ineligible for execution. Luong 
received IQ scores of 51, 49, and 57 on 4 different IQ tests administered by 
state and defense experts. He received scores of 61, 55, and 60 on adaptive 
functioning instruments. The experts agreed that Luong's disability manifested 
prior to the age of 18.

Other people with intellectual disability continue to be sentenced to death and 
executed in this country. Thankfully, the Alabama Attorney General's Office 
followed the letter of the law and reached the right result here.

(source: aclu.org)








TENNESSEE:

Haslam: Tennessee ready to use electric chair for execution



Tennessee Gov. Bill Haslam says the state is prepared to execute death row 
inmate Edmund Zagorski using the electric chair.

Haslam told reporters Thursday he is not reconsidering granting Zagorski 
clemency despite issuing a 10-day reprieve last week that delayed the inmate's 
execution. Among the reasons Haslam handed down a reprieve was Zagorski's 
request to die in the electric chair as a quicker and less painful execution 
method than lethal injection.

Haslam says the state has been ready to use the electric chair since Oct. 11 - 
the day of Zagorski's original execution.

No new execution date has been set, but court documents indicate he could be 
executed as early as Oct. 28.

Zagorski was sentenced to death in 1984 for killing two men he robbed during a 
drug deal.

(source: Associated Press)








ARKANSAS----female faces death penalty

Suspect in Fort Smith homicide may face death penalty



Christina McKee is facing the death penalty for the alleged slaying of her 
boyfriend.

McKee, 25, of the Fort Smith area allegedly shot her boyfriend, Shawn Sewell, 
33, of Crawford County, to death Oct. 2 outside his place of work. According to 
the probable cause affidavit, Crawford County authorities subsequently charged 
McKee with capital murder, which in Arkansas holds the possibility of the death 
penalty, for her alleged actions.

McKee on Thursday had not entered a plea on her charges. Officials had not set 
a court date for the case, according to court records.

Sheriff’s Chief Deputy Jimmy Damante on Oct. 3 said McKee shot Sewell around 
5:30 p.m. Oct. 2 during a fight outside his place of work in the 5200 block of 
Alma Highway. A store clerk allegedly told authorities that Sewell had told him 
or her prior to the incident that his girlfriend had a gun and was going to 
kill him, according to the affidavit.

McKee shot Sewell in his truck outside his place of work. Deputies found him 
dead at at the scene of the incident, said Sheriff Ron Brown that evening.

(source: Times Record)

*****************

5 Arkansas justices file petition in their own court seeking to toss ethics 
charges against them



5 Arkansas Supreme Court justices are trying to block the state's judicial 
discipline agency from sanctioning them over their quick decision to remove a 
judge from capital cases after he participated in death penalty protests.

The 5 justices filed a petition with their own court on Wednesday seeking 
dismissal of the ethics complaint filed last month by the Arkansas Judicial 
Discipline and Disability Commission, report the Associated Press and the 
Arkansas Democrat-Gazette. The justices assert that the ethics complaint is 
"clearly outside the JDDC's jurisdiction."

2 other justices - Courtney Goodson and Robin Wynne - did not join the 
petition. The entire court plans to recuse itself from hearing the justices' 
petition, a lawyer for the justices told AP and the Arkansas Democrat-Gazette.

The commission's formal charges had alleged that the justices didn't give Judge 
Wendell Griffen of Little Rock enough time to respond to an emergency petition 
seeking to vacate his order blocking the use of an execution drug. Nor was 
Griffen notified or given an opportunity to be heard on the court's decision to 
go further and remove him from all death penalty cases, both civil and 
criminal, the commission said.

The formal charges described the Arkansas Supreme Court's removal of Griffen 
from capital cases without sufficient notice as "arbitrary and capricious 
conduct."

"We do not believe that just because the supreme court has superintending 
control over lower courts, its justices are somehow insulated from the 
processes of the Arkansas Judicial Discipline and Disability Commission, 
especially when the supreme court's own action results in the de facto 
disciplining of another judge" without the safeguards of the discipline 
process, the formal charges stated.

The petition by the 5 justices counters that their action against Griffen was a 
recusal order that was not disciplinary in nature, issued under their 
supervisory power over state courts.

The justices also cite commission rules that say the commission has no 
jurisdiction over judges for legal decisions when there is no fraud, corrupt 
motive or bad faith. There were no such allegations in the case against the 
justices.

Griffen had filed the ethics complaint that led to the ethics charges, 
initially filed against 6 of the court's 7 justices. The court's 7th justice 
was charged a few weeks later because of a delay in notifying him, the Arkansas 
Times reported.

Griffen had participated in anti-death penalty protests on April 14, 2017, the 
same day he issued the decision blocking the execution drug. At 4:23 p.m. the 
next day, a Saturday, the supreme court clerk notified Griffen about the 
emergency petition, filed by the state's attorney general, in an email sent to 
his office. The notice said Griffen had to respond by 9 a.m. on Monday.

Griffen didn't respond on Monday, and the court issued its per curiam opinion 
tossing Griffen from death penalty cases at 10:33 a.m. on the same day. Chief 
Justice John Dan Kemp issued a partial dissent saying he would reassign Griffen 
only on the pending case.

Griffen himself faces ethics charges for participating in the demonstration. He 
also filed a suit claiming that his disqualification from death penalty cases 
violated his constitutional rights, but the case was tossed by the 8th U.S. 
Circuit Court of Appeals at St. Louis earlier this year.

The justices said the 8th Circuit decision found Griffen's claim to be 
meritless and the issue cannot be relitgated.

(source: abajournal.com)